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David v. State (4/29/2016) ap-2497

David v. State (4/29/2016) ap-2497


           The text of this opinion can be corrected before the opinion is published in the  

          Pacific Reporter        .  Readers are encouraged to bring typographical or other formal  

           errors to the attention of the Clerk of the Appellate Courts:  

                                         303 K Street, Anchorage, Alaska  99501

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                          


                                                                               Court of Appeals No. A-11252  


                                          Appellant,                           Trial Court No. 4BE-06-005 CI  



                                                                                          O  P  I  N  I  O  N  




                                          Appellee.                               No. 2497 - April 29, 2016  


                     Appeal from the Superior  Court,  Fourth  Judicial District,  


                     Bethel, Dale O. Curda, Judge.  


                     Appearances:  Jane B. Martinez, Anchorage, under contract  


                     with  the  Public  Defender  Agency,  and  Quinlan  Steiner,  


                     Public  Defender,  Anchorage,  for  the  Appellant.                                  Terisia  


                     Chleborad,  Assistant  Attorney  General,  Office  of  Special  


                     Prosecutions  and  Appeals,  Anchorage,  and  Michael  C.  


                     Geraghty, Attorney General, Juneau, for the Appellee.  


                     Before:          Mannheimer,  Chief  Judge,  Allard,  Judge,  and  


                     Hanley, District Court Judge. *  


                     Judge MANNHEIMER.  


     *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                     David N. David appeals the superior court's dismissal of his petition for  


 post-conviction relief.  The superior court concluded that the petition and its supporting  


 documents failed to state a prima facie  case for relief.  


                     For the reasons explained in this opinion, we concur in the superior court's  


 assessment that David's petition - in the form it was presented - failed to state a prima  


facie  case. We therefore affirm the superior court's judgement. However, as we explain  


 in this opinion, we urge judges to be vigilant and pro-active in making sure that the  


 attorneys who are appointed to represent defendants seeking post-conviction relief do,  


 in fact, provide zealous representation to those defendants.  


           Underlying facts  


                     In 2001, David N. David was accused of first-degree sexual assault and  


 fourth-degree assault.  He was tried two times on these charges; the first trial ended in  


 a hung jury, but he was found guilty at the second trial.  David appealed, and this Court  


 affirmed  his  convictions  and  his  sentence  in  March  2005.                                    See  David  v.  State,  


 unpublished, 2005 WL 662691 (Alaska App. 2005).  


                     Severalmonthslater, David filed a prose petition for post-conviction relief,  


 asserting that he had received ineffective assistance of counsel from his trial attorney.  


 Specifically,   David  alleged  that  his  trial  attorney,   David  Henderson,   had  not  


 communicated with him prior to trial and had refused to file pre-trial motions.  David  


 also alleged that Henderson had failed to perform pre-trial investigation of the case,  


 including the testing of physical evidence.  David asserted that the victim of the sexual  


 assault was coerced into identifying David as her assailant, and that these investigative  


 measures  were  needed  to  rebut  the  victim's  identification  and  establish  David's  




                                                               - 2 -                                                          2497

----------------------- Page 3-----------------------

                     In addition, David asserted that his trial attorney had been operating under  


a  conflict  of  interest.           David  contended  that  this  conflict  of  interest  arose  because  


Henderson  represented  him  before  and  during  the  two  trials,  but  then  Henderson  


proceeded to "abandon" him - leaving another attorney, Brian Kay, to represent David  


at sentencing.  


                     In May 2006, the superior court appointed the Public Defender Agency to  


assist David in pursuing this post-conviction relief action.  Over the course of the next  


three years, the Agency assigned a series of attorneys to David's case before David's  


petition was eventually submitted in its final form.  


                     The first attorney assigned to David's case was Assistant Public Defender  


Joshua Fitzgerald, who worked in the Agency's Bethel office.  Between July 2006 and  


May 2008, Fitzgerald asked for (and was granted) eight extensions of time for filing an  


amended petition for post-conviction relief.  Fitzgerald gave various reasons for these  


requested extensions: not having received the court file in the underlying criminal case;  


then needing more time to review the trial file and the transcript; and then needing to  


acquire additional transcripts.  


                     In  May  2008  (two  years  after  the  Agency's  appointment),  Fitzgerald  


notified the superior court that David's case was being reassigned to the Anchorage  


office - and he asked for a three-month extension of time so that a new attorney could  


familiarize themself with the case.  


                     The Anchorage office initially assigned David's case to Assistant Public  


Defender Dan Lowery.  At that point, David's amended petition was due in late August  


2008.  Lowery asked for three extensions, totaling eight months, to file the amended  


petition.  Lowery told the superior court that he needed this extra time so that he could  


consult an expert witness, and also because he was having difficulty communicating with  


David, who was incarcerated at the Red Rock Correctional Center in Eloy, Arizona.  


                                                               - 3 -                                                          2497

----------------------- Page 4-----------------------

                    In March 2009, with the amended petition due on April 21st, the Public  


Defender Agency transferred Mr. Lowery to a felony trial position, and David's post- 


conviction relief case was assigned to Assistant Public Defender Lee DeGrazia.  Then,  


less than three weeks later, Ms. DeGrazia went on leave, and David's case was re- 


assigned to Mr. Lowery.  


                    Upon re-acquiring David's case, Lowery sought another filing extension.  


He told the superior court that the re-assignment of David's case within the Agency had  


delayed the copying and transmitting of court files and transcripts to the expert witness,  


and thus the Agency needed additional time to secure the expert witness's opinion in the  




                    Finally, in June 2009 - 3- years after David filed his original pro se  


petition for post-conviction relief, and more than 3 years after the Agency's appointment  


- Lowery notified the superior court that he would not be filing an amended petition,  


and that he would instead proceed on David's pro se  petition.  Lowery did, however,  


supplement this pro se  petition with a one-page affidavit from David's trial attorney,  


David Henderson.  


                    In this affidavit, Henderson responded to David's contentions that he had  


failed to file pre-trial motions, and that he had failed to investigate the case.  Henderson  


stated that he was "not aware of any pre-trial motions that should have been filed" and  


that he was likewise unaware of "[any] evidence that should have been independently  


tested."  Henderson added that he had employed an investigator to investigate David's  


alibi defense, but this investigator "failed to come up with any witness who would  


corroborate [David's] alibi."  


                    With respect to David's claim that Henderson had not communicated with  


him about the case, Henderson asserted that he had "communicated with Mr. David at  

                                                              - 4 -                                                         2497

----------------------- Page 5-----------------------

the jail on a number of occasions", and that he had "conveyed the [State's plea bargain]  


 offer to him" - an offer "which [David] rejected."  


                     Finally, with respect to David's claim that Henderson had a conflict of  


 interest, Henderson asserted that he "[was] not aware of any conflict of interest that  


prohibited [him] from representing Mr. David."  Henderson explained that, by the time  


 of David's sentencing, he "was no longer working for the Office of Public Advocacy",  


 so "Mr. Kay handled that matter."  Henderson declared that he had had nothing to do  


with David's sentencing or his direct appeal.  


                     Nothing else happened in David's case for over a year. Then, in July 2010  


- thirteen months after Lowery announced that he would proceed on David's original  


pro se  petition (as supplemented by Henderson's affidavit) - the State filed a motion  

to dismiss David's petition for post-conviction relief on the ground that David had failed  


to set forth a prima facie  case for relief.  The superior court tentatively agreed with the  


 State  that  David's  petition  was  legally  inadequate,  and  the  court  gave  Lowery  an  


 additional 90 days to supplement the petition.  


                     Lowery responded to the superior court's order by submitting an affidavit  


 executed by David, in which David provided a more detailed description of his claims  


 for post-conviction relief.  


                     In this affidavit, David faulted Henderson for failing to point out that there  


were many other convicted sex offenders living in Bethel at the time of the sexual  


 assault, and that "hundreds of other suspects could have committed the assault".  David  


 also asserted that the victim's identification of him as her assailant "was not anywhere  


 close to reliable" because the victim's initial description of her attacker did not match  


David.  David contended that Henderson should have hired an expert on eyewitness  


 identification to attack the victim's identification of him.  


                                                               - 5 -                                                         2497


----------------------- Page 6-----------------------

                                                                     David's affidavit also described                                                                                                                                              several potential reasons to doubt the                                                                                                                                              

  accuracy or the credibility of testimony given by various government witnesses at his                                                                                                                                                                                                                                                                                                                                                  


                                                                      In addition to this supplemental affidavit, David also submitted a separate                                                                                                                                                                                                                                                        

pro se  pleading in which he made an additional assertion:                                                                                                                                                                                                                                                       that Henderson gave him                                                                                            

  incompetent legal advice by failing to warn him that, if he pleaded guilty, this would                                                                                                                                                                                                                                                                                                                                

 prejudice his ability to defend any civil lawsuit filed by the victim.                                                                                                                                                                                                                                                                                           (This particular   

  allegation was meritless on its face, because David did                                                                                                                                                                                                                              not  plead guilty; rather, he went                                                                                                       

  to trial - twice.)                                                                        

                                                                     After receiving these supplemental pleadings, the superior court again                                                                                                                                                                                                                                                                                

  concluded that David had failed to set forth a                                                                                                                                                                             prima facie                                                       case for post-conviction relief.                                                                                                                             

  Thecourt acknowledgedthat David had identified "possible flaws in the State'sevidence                                                                                                                                                                                                                                                                                                                      

  against him".                                                        But the court noted that "[these] issues ... were all addressed in [David's]                                                                                                                                                                                                                                                     

  two trials".                                             In other words, David's trial attorney was aware of these potential flaws in                                                                                                                                                                                                                                                                                                        

  the State's case, and he pursued them.                                                                                                                                                               

                                                                      The superior court re-affirmed its earlier conclusion that David had failed                                                                                                                                                                                                                                                                           

  to provide any reason to believe that Henderson's handling of the case was below the                                                                                                                                                                                                                                                                                                                                                   

  minimum level of competence expected of criminal defense attorneys.                                                                                                                                                                                                                                                                                                        And the court                                    

  therefore dismissed David's petition.                                                                                                                                                          

                                     Why we agree with the superior court that David's pleadings failed to set                                                                                                                                                                                                                                                                                           

                                 forth a prima facie  case for post-conviction relief  


                                                                      The  question  of  whether  a  petition  for  post-conviction  relief  and  its  


  supporting documents adequately set forth a prima facie  case for relief is a question of  


  law.  We therefore review the superior court's decision on this question de novo - i.e.,  


                                                                                                                                                                                                                  - 6 -                                                                                                                                                                                                           2497

----------------------- Page 7-----------------------

 without deference to the superior court's conclusion.                                        See Burton v. State              , 180 P.3d 964,       

 974 (Alaska App. 2008).                        

                        (We acknowledge that this Court has previously issued several decisions   

 where   we   stated   that   the   standard   of   review   governing   this   question   is   "abuse   of  

                      1                                                    2 )  


 discretion".             Those decisions are wrong.  


                        David's  petition  for  post-conviction  relief  contains  several  claims  of  


 ineffective assistance of counsel against his trial lawyer, Henderson. Specifically, David  


 contends that Henderson did not communicate with him prior to trial, that Henderson  


 refused or neglected to file pre-trial motions, and that Henderson did not perform a pre- 


 trial investigation of the case (including a failure to seek testing of physical evidence).  


                        But for purposes of deciding whether David's pleadings set forth a prima  


facie  case that Henderson's representation was ineffective, the superior court was not  


 required to accept the truth of these broad assertions unless David backed them up with  


 specifics.  See LaBrake v. State, 152 P.3d 474, 480-81 (Alaska App. 2007), where this  


 Court held that when a trial court rules on the legal sufficiency of a petition for post- 


 conviction relief, the court need not presume the truth of "[a defendant's] assertions  


 concerning  the  legal  effect  or  categorization  of  the  underlying  occurrences  [nor  a  


 defendant's] conclusory assertions concerning the ultimate facts to be decided."  

       1     See, e.g., Cole v. State, 72 P.3d 322, 323-24 (Alaska App. 2003); Tall v. State, 25 P.3d  

 704, 708 (Alaska App. 2001); Jerrel v. State , 851 P.2d 1365, 1373 (Alaska App. 1993);  


 Brown v. State, 803 P.2d 887, 889-890 (Alaska App. 1990).  

       2     See also Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 351 (Alaska  

 2011), and Nielson v. Benton, 903 P.2d 1049, 1051-52 (Alaska 1995), holding that it is a  

 question of law whether a civil plaintiff's case is sufficient to survive a motion for summary  


judgement - and that, for this reason, the trial court's ruling on this issue is reviewed  de  


 novo on appeal.  

                                                                         - 7 -                                                                  2497

----------------------- Page 8-----------------------

                     Here, David's petition (even in itssupplemented form) does notpresent any  


specifics to support his claims of lack of communication - and Henderson's affidavit  


asserts just the opposite.  


                     David's supplemented petition does identify potential flaws in the State's  


criminal case, and David asserts that Henderson failed to pursue these areas of inquiry.  


But the superior court found that these weaknesses in the State's case were explored at  


David's two trials.  And as this Court said in LaBrake, "the court need not assume the  


truth of assertions that are patently false or unfounded, based on the existing record or  


based on the court's own judicial notice."  Id. at 481.  


                     David's petition also asserts that Henderson was incompetent for failing to  


present  expert  testimony  on  the  subject  of  eyewitness  identification  (to  attack  the  


victim's identification of David as her assailant), and for failing to obtain expert testing  


of the physical evidence in the case.  But David's petition offers no specific reasons to  


believe that this proposed expert testimony, or the results of this proposed expert testing,  


would have helped him.  


                     (We  note  that  the  record  of  the  post-conviction  relief  litigation  -  in  


particular, Mr. Lowery's request for an extension of time - suggests that Lowery  


intended to consult an expert of some sort, and that Lowery was going to provide this  


expert with materials from David's case.  But Lowery apparently decided not to present  


any information on this issue (whatever it might have been), because Lowery did not  


amend or supplement David's petition with any offer of expert testimony.)  


                     David's petition also asserts that his trial attorney was operating under a  


conflict of interest.  But David offers no evidence to support a finding that a conflict  


existed. As we have explained, David asserted that this purported conflict arose because  


Henderson, after representing him at his two trials, stopped working for the Office of  


Public Advocacy - leaving another attorney, Brian Kay, to handle David's sentencing  


                                                               - 8 -                                                          2497

----------------------- Page 9-----------------------

hearing.  But David does not offer any evidence that Kay was unprepared to represent  


him at sentencing, or that this change of attorneys prejudiced him in any other way, or  


that this change of attorneys violated Henderson's responsibilities to David under the  


applicable rules of professional conduct.  


                    And finally, David's supplemental pro se pleading asserts that Henderson  


gave him incompetent legal advice by failing to warn him that, if he pleaded guilty, this  


would prejudice his ability to defend any civil lawsuit filed by the victim.  But as we  


have already explained, this contention is meritless on its face, because David did not  


plead guilty.  He pleaded not guilty, and he went to trial.  


                     In sum, we agree with the superior court that David's petition for post- 


conviction relief did not set forth a prima facie  case for relief.  


          A note on the disturbing procedural history of this case  


                     Even though we agree with the superior court that David's petition failed  


to set forth a prima facie case for post-conviction relief, we would be remiss if we failed  


to comment on the manner in which David's litigation was handled by his attorneys.  


                     When an attorney is appointed to represent an indigent defendant who has  


filed a pro se petition forpost-conviction relief, Alaska Criminal Rule 35.1(e)(2) requires  


the post-conviction relief attorney to do one of three things:  (1) elect to go forward on  


the petition as drafted by the client, (2) draft and file an amended petition, or (3) certify  


to the superior court that the petitioner has no colorable claim for relief.  


                     In  Griffin v. State, 18 P.3d 71 (Alaska App. 2001), this Court held that  


when the  attorney pursues the third course of action  listed  in  Rule 35.1(e)  -  i.e.,  


certifying that the defendant has no claims of any arguable merit - the attorney must  


explain in detail why they reached this conclusion.  Id. at 76-77.  


                                                               - 9 -                                                          2497

----------------------- Page 10-----------------------

                        Our decision in              Griffin  was based in large measure on the need to protect                                   

an indigent defendant's constitutional right to counsel. Under the United States Supreme                                                       


Court's decision in                Smith v. Robbins               ,                                                                             

                                                                      a court must not allow a court-appointed attorney  


to concede that an indigent defendant's case has no arguable merit - i.e., to concede that  


there are no colorable arguments to be made in favor of the defendant's position -  


unless the attorney has presented the court with sufficient information to allow the court  


to independently determine that this is true.  In Griffin, we concluded that if we did not  


interpret Criminal Rule 35.1(e)(2) to require a detailed explanation from the defendant's  


post-conviction relief attorney, the superior court would not be able to comply with its  


duty under Smith v. Robbins to ensure that the defendant received zealous and competent  


representation.  Griffin, 18 P.3d at 77.  


                        Two years later, in Tazruk v. State, 67 P.3d 687 (Alaska App. 2003), we  


applied this same rationale in a case where the defendant's court-appointed attorney  


pursued the first course of action listed in Criminal Rule 35.1(e) - i.e., electing to go  


forward on the pro se petition drafted by the defendant. The problem in Tazruk was that  


all of the claims listed in the defendant's pro se petition were either facially meritless or,  


at best, facially inadequate to survive a motion to dismiss.  Id. at 690.  


                        When the State filed a motion to dismiss the petition (on the ground that it  


failed to state a prima facie  case for relief), Tazruk's attorney did not seek leave to  


amend or supplement the defendant's claims, nor did the attorney ask for more time to  


investigate the claims and (potentially) adduce more evidence to support them. Instead,  


Tazruk's attorney announced that he had nothing to say in opposition to the State's  


motion to dismiss.  Ibid.  


                        We   concluded   that   the   record   in   Tazruk's   case   raised   the   same  


constitutional concerns that were presented in Griffin - because it was impossible to tell  

      3     528 U.S. 259, 276-281; 120 S.Ct. 746, 759-762; 145 L.Ed.2d 756 (2000).  

                                                                         -  10 -                                                                     2497


----------------------- Page 11-----------------------

whether Tazruk's attorney zealously and competently worked on  the case.   As we  




                              Even if we assume that Tazruk did receive effective  


                    assistance - that is, even if we assume that a zealous and  


                    competentattorney could have done nothing more to advance  


                    Tazruk's claims - the fact remains that the record contains  


                    no indication that Tazruk's attorney ever investigated these  


                    claims, sought to adduce support for themthrough discovery,  


                    or sought to reformulate them so that they might survive a  


                    motion to dismiss.   The record shows only the attorney's  


                    inaction and ultimate concession of defeat.  As was true in  


                     Griffin, such a record is insufficient to allow the courts to  


                    carry  out  their  constitutional  duty  to  make  sure  that  an  


                    indigent         petitioner        receives        zealous        and       competent  




                              We hasten to add that an attorney's decision to adopt  


                    the  claims  stated  in  their  client's  existing  petition  for  


                    post-conviction relief does not necessarily bespeak attorney  


                    inattention or neglect.  ...  


                              But  in  Tazruk's  case,  there  is  no  record  that  the  


                    attorney did anything to pursue or develop Tazruk's claims.  


                    We do not know whether the attorney actually investigated  


                    these claims or otherwise worked to develop them; if he did,  


                    there is no record of it.  And because of this silent record, we  


                    are faced with a Griffin problem.  We do not know - and  


                    have no way of assessing - whether the attorney zealously  


                    represented Tazruk's interests.  


Tazruk, 67 P.3d at 691 (emphasis in the original).  


                    Turning to the facts of David's case, we acknowledge that the record in  


David's case is somewhat fuller than the record in Tazruk.  The pleadings in David's  


case suggest that one or more attorneys from the Public Defender Agency reviewed the  


                                                             -  11 -                                                         2497

----------------------- Page 12-----------------------

trial file and the transcript from David's underlying criminal case.   And one of Mr.  


Lowery's  motions  for  an  extension  of  time  suggests  that  he  consulted  (or  at  least  


intended to consult) some kind of expert witness.  And, in the end, Lowery supplied the  


superior court with a supplemental affidavit from David, as well as a one-page affidavit  


from David's trial attorney - in which the trial attorney denied all of David's assertions  


of ineffective assistance.  


                     But even so, we confront a problem in David's case that is analogous in  


many ways to the problem we confronted in Tazruk.  On their face, the claims raised in  


David's pro se petition suffered from serious deficiencies. The existing record suggests  


that David's series of attorneys demonstrated an acceptable level of competence and zeal  


when  they  investigated  David's  potential  claims  for  post-conviction  relief,  but  we  


concede that the record also leaves a certain level of doubt on this score.  


                     In the end, we can not say that the superior court acted improperly when  


it dismissed David's petition for post-conviction  relief on the pleadings - and we  


therefore uphold the superior court's resolution of this case.  But we urge superior court  


judges to be pro-active in protecting the rights of indigent defendants when, as here,  


court-appointed attorneys keep shifting a defendant's case back and forth for months or  


years,  with  little  discernible  progress  in  the  formulation  or  presentation  of  the  


defendant's claims.  



                     The judgement of the superior court is AFFIRMED.  


                                                              -  12 -                                                        2497


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